Gilmore v. City of Minneapolis et al

Filing 83

ORDER sustaining 58 APPEAL/OBJECTION OF MAGISTRATE JUDGE DECISION to District Judge, reversing 57 Order on Motion for Discovery, denying 38 MOTION for Discovery filed by John Hugh Gilmore, and (Written Opinion). Signed by Judge John R. Tunheim on September 21, 2014. (HAZ)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Civil No. 13-1019 (JRT/FLN)

JOHN HUGH GILMORE,
Plaintiff,
v.
CITY OF MINNEAPOLIS; and DEITAN
DUBUC, JOSHUA STEWART,
THOMAS RYAN, GREGORY KOSCH
and MARK LANASA, in their official
and individual capacities as Police
Officers of the City of Minneapolis,

MEMORANDUM OPINION AND
ORDER REVERSING THE MAY 30,
2014 ORDER OF THE
MAGISTRATE JUDGE

Defendants.
Mark R. Miller, MARK R. MILLER, PLLC, 2885 Knox Avenue South,
#406, Minneapolis, MN 55408, for plaintiff.
Sarah C. S. McLaren and Brian Scott Carter, Assistant City Attorneys,
OFFICE OF THE MINNEAPOLIS CITY ATTORNEY, 350 South
Fifth Street, Room 210, Minneapolis, MN 55415, for defendants.

In this action Plaintiff John Hugh Gilmore brings claims under 42 U.S.C. § 1983
for violations of his First, Fourth, and Fourteenth Amendment rights as well as a state law
claim for unlawful arrest against the City of Minneapolis (“the City”) and various police
officers for the City (collectively, “Defendants”), arising out of Gilmore’s arrest in
downtown Minneapolis on June 16, 2011. Defendants object to the order of United
States Magistrate Judge Franklin N. Noel granting Plaintiff’s motion to compel
Defendants to respond to certain interrogatories by identifying the laws and legal

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authority supporting their defenses regarding the legality of Gilmore’s arrest. The Court
has carefully considered Defendants’ timely objections. Because the Court finds that
interrogatories which ask for relevant legal authorities in support of a parties’ position
impermissibly seek protected work product, the Court will sustain Defendants’ objections
and reverse the order of the Magistrate Judge.

BACKGROUND
I.

GILMORE’S ALLEGATIONS
Gilmore’s allegations in this case arise out of an incident that occurred in

downtown Minneapolis on the evening of June 16, 2011. (Third Am. Compl. ¶ 9,
Nov. 20, 2013, Docket No. 20.) Gilmore alleges that he was eating dinner with friends at
a restaurant when two Minneapolis police officers approached him and asked if he would
step outside with them to answer some questions. (Id. ¶ 10.) When Gilmore asked the
officers what their purpose was, he alleges that they “physically manhandled him out of
the booth and dragged him” outside. (Id. ¶ 11.) The officers then handcuffed Gilmore
and placed him in the back of a squad car, where he sat for approximately thirty minutes.
(Id.¶ 12.) The officers then returned to the car and told Gilmore he was free to leave, but
after communicating with police headquarters via radio told Gilmore that they were
instead taking him to jail for “disorderly conduct” and “interference with lawful process.”
(Id. ¶¶ 13-14.) While being transported to jail, Gilmore saw an officer rip up and throw
away a sign that Gilmore had with him at the restaurant. (Id. ¶ 16.) Gilmore was
released from jail the next morning on $50 bail, and on March 7, 2012, the City of

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Minneapolis dropped all charges against him. (Id. ¶¶ 23, 26.)
In his third amended complaint, Gilmore alleges that prior to dinner that night he
had been at a political gathering of “Right Online” with other conservative activists. (Id.
¶ 18.) When Gilmore was walking from the gathering to the restaurant he passed several
women he believed to be Muslims, and asked them “their opinion of Ayaan Hirsi Ali, the
world’s preeminent human rights activist on behalf of women in Muslim countries.” (Id.
¶ 18.) Gilmore alleges that shortly after that conversation began “a flash mob started to
form” comprised of political activists with the organization Netroots Nation. (Id. ¶ 19.)
Gilmore alleges that he was “suddenly surrounded by aggressive, yelling, abusive
activists,” and although “[h]e engaged on matters political for a short time,” he “began to
fear for his personal safety,” and after several attempts was “able to escape from the
threatening mob.” (Id. ¶¶ 20-21.)

II.

GILMORE’S DISCOVERY REQUESTS
In various documents filed in this matter since the filing of the third amended

complaint, Defendants take the position that the two Minneapolis police officers that
confronted Gilmore at the restaurant were dispatched based on reports that he was
yelling, threatening, and making racial slurs at passersby. (First Decl. of Brian S. Carter,
Ex. B at 3, Jan. 22, 2014, Docket No. 26.) 1 Defendants also contend that prior to the
arrival of the two police officers, Gilmore was placed under a lawful citizen’s arrest by a

1

All page numbers refer to the CMECF pagination.

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private person. (Id., Ex. A.) In their answer to the third amended complaint Defendants
pled a number of defenses, including
2. Defendants allege affirmatively that they are entitled to statutory
immunity under Minnesota Statutes Chapter 466, qualified immunity, and
official immunity from any liability in this action.
3. Defendants allege that they are immune from liability in this action
under the provisions of Minn. Stat. § 46.03, subd. 5 in that Plaintiff’s claim
is a claim based upon an act or omission of an officer or employee,
exercising due care, in the execution of a valid or invalid statute, charter,
ordinance, resolution or rule.
4. Defendants allege affirmatively that they are immune from liability in
this action under the provisions of Minn. Stat. § 466.03, subd. 6 in that
Plaintiff’s claim is a claim based upon the performance or the failure to
exercise or perform a discretionary function or duty, whether or not the
discretion is abused.
5. The acts upon which the Third Amended Complaint is made were
privileged, were based upon probable cause to believe the Plaintiff
committed a criminal offense, were commanded or authorized by law, and
were done in a reasonable and lawful manner under the circumstances, such
Defendant Officers are immune from liability in this action, and that
therefore the City of Minneapolis, if it is vicariously liable for any such
acts, is vicariously immune.
(Joint Answer to Third Am. Compl. at 8-9, Dec. 4, 2013, Docket No. 21.)
Gilmore served a number of interrogatories and requests for admission related to
these defenses that are the subject of the present objections. The two interrogatories at
issue state:
Interrogatory No. 6
State in detail all facts which defendants claim support their “Separate
Defenses,” numbers 2 through 5 in their Answer, which assert that
defendants have “immunity from liability” in this action.
Interrogatory No. 9

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If Defendants deny any of Plaintiff’s Requests for Admissions, explain in
detail the reason or reasons for any such denial.
(Pl.’s Mem. in Supp. of Mot. to Compel at 2, Apr. 30, 2014, Docket No. 40.) The
requests for admission referenced in Interrogatory 9 seek admissions regarding the
lawfulness of Gilmore’s arrest and the lawfulness of the officer’s destruction of
Gilmore’s sign, stating:
Request No. 2: Admit that the defendant arresting officer who destroyed
plaintiff’s sign . . . did not have a warrant or probable cause to seize and
destroy the sign.
Request No. 3: Admit that under Minnesota law the arresting defendant
officers had no authority to arrest plaintiff for a misdemeanor offense when
the alleged offense was not committed in the officers’ presence.
Request No. 4: Admit that under Minnesota law the arresting defendant
officers did not have a warrant to arrest plaintiff . . . .
Request No. 5: Admit that under Minnesota law the arresting defendant
officers did not have probable cause to arrest plaintiff . . . .
Request No. 6: Admit that plaintiff had a clearly established right under the
First Amendment of the United States Constitution to carry the sign he had
with him . . . .
Request No. 7: Admit that [] a reasonable officer would understand that
plaintiff’s clearly established First Amendment rights were violated by the
actions of defendants . . . .
Request No. 8: Admit that plaintiff had a clearly established right under the
Fourth Amendment of the United States Constitution not to have his papers
and effects seized and destroyed without warrant or probable cause . . . .
Request No. 9: Admit that plaintiff had a clearly established right under the
Fourth Amendment of the United States Constitution not to be arrested
without warrant or probable cause . . . .

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Request No. 10: Admit that a reasonable officer would understand that
plaintiff’s clearly established Fourth Amendment rights were violated by
the actions of defendants . . . .
(See id. at 2-3.)
Defendants provided the following responses to the interrogatories:
Interrogatory No. 6:
SUPPLEMENTAL ANSWER:
Objection – calls for information
protected by Attorney/Client Privilege and/or Work Product Doctrine.
Subject to and without waiving these objections, Defendants state that their
actions, as are discussed in the documents produced and interrogatory
answers, were specifically permitted by law and did not violate any clearly
established rights. Defendants did not act in a willful or malicious manner.
Defendants’ actions were privileged, were based upon probable cause to
believe the Plaintiff committed a criminal offense, were commanded or
authorized by law, and/or were done in a reasonable and lawful manner
under the circumstances. Defendants are entitled to statutory immunity,
including but not limited to immunity under the statutes identified in the
Answer.
Interrogatory No. 9:
SUPPLEMENTAL ANSWER: With regard to the partial denial of
Request No. 1, the defendant officers have knowledge of the events
described in paragraph 22 of the Second Amended Complaint to the extent
the events took place after the arrival of the defendant officers at the
restaurant. With regard to the denial of Request No. 2, the alleged events
did not occur and, even if they occurred, such events did not constitute a
constitutional violation. With regard to the denial of Request Nos. 3, 5-10
the arresting officers had the legal authority to take all actions taken with
respect to Plaintiff.
(Second Decl. of Mark R. Miller, Ex. A at 1-4 Apr. 30, 2014, Docket No. 41.)

III.

MOTION TO COMPEL
On April 16, 2014, counsel for Gilmore emailed Defendants and indicated that he

believed the interrogatory responses were insufficient, and requested that Defendants
“provide detailed answers on the ‘law’ and the ‘legal authority’ which defendants are
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relying upon, as requested in Interrogatories nos. 6 and 9.” (Second Decl. of Brian S.
Carter, Ex. A at 3, May 7, 2014, Docket No. 52.) Defendants responded that they
believed the information was work product, and therefore the supplemental interrogatory
answers were not deficient. (Id., Ex. A at 2.)
On April 30, 2014, Gilmore filed a motion to compel responses to the
interrogatories at issue. (Mot. to Compel, Apr. 30, 2014, Docket No. 38.) In the motion,
Gilmore argued that it was insufficient for Defendants to respond that their actions “were
either ‘permitted by law,’ or were ‘commanded or authorized by law,’” and that he was
“entitled to know specifically which law and which legal authority the defendants are
relying upon.” (Pl.’s Mem. in Supp. of Mot. to Compel at 4 (emphasis in original).)
Therefore, Gilmore requested that the Court require Defendants “to identify with
specificity which laws and legal authority they are relying upon to support their defense
that the arresting officers were justified and had probable cause to arrest plaintiff.” (Id. at
8.)
The Magistrate Judge granted Gilmore’s motion, finding that Gilmore’s
interrogatories were permissible contention interrogatories under Federal Rule of Civil
Procedure 33. Specifically, the Magistrate Judge explained:
The information sought by Plaintiff is relevant and must be produced. One
of the central issues in this case is whether the arrest of Gilmore was
lawful. At the hearing, Defendants stated that Gilmore’s arrest was a
lawful citizen’s arrest, but that Defendants were under no obligation to
specify the statutes or other legal authority supporting their position. This
is not so. The information sought by Plaintiff through the relevant
interrogatories and requests for admission represent classic contention
interrogatories that are permissible under the Federal Rules of Civil
Procedure. Fed. R. Civ. P. 33(a)(2). Thus, to the extent Plaintiff moves to
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compel additional information about Defendant[s’] position regarding the
legality of Gilmore’s arrest and subsequent destruction of Gilmore’s sign –
including relevant legal authorities – Plaintiff’s motion is GRANTED.
(Order at 4-5, May 30, 2014, Docket No. 57.)
ANALYSIS
I.

STANDARD OF REVIEW
The standard of review applicable to an appeal of a Magistrate Judge’s order on

nondispositive pretrial matters is extremely deferential. Roble v. Celestica Corp., 627
F. Supp. 2d 1008, 1014 (D. Minn. 2007). This Court will reverse such an order only if it
is clearly erroneous or contrary to law. 28 U.S.C. § 636(b)(1)(A); Fed. R. Civ. P. 72(a);
D. Minn. LR 72.2(a)(3).

“A finding is clearly erroneous when ‘although there is

evidence to support it, the reviewing court on the entire evidence is left with the definite
and firm conviction that a mistake has been committed.’” Lisdahl v. Mayo Found., 633
F.3d 712, 717 (8th Cir. 2011) (quoting Anderson v. City of Bessemer City, 470 U.S. 564,
573 (1985)). “A decision is contrary to law when it fails to apply or misapplies relevant
statutes, case law or rules of procedure.” Knutson v. Blue Cross & Blue Shield of Minn.,
254 F.R.D. 554, 556 (D. Minn. 2008) (internal quotation marks omitted).

II.

CONTENTION INTERROGATORIES
Defendants object to the Magistrate Judge’s order to the extent it “requires the

disclosure of legal citations determined to be relevant by defense counsel,” arguing that
this information is protected by the work product privilege. (Defs.’ Objections at 1, 5,
June 13, 2014, Docket No. 58.)

Federal Rule of Civil Procedure 33 governs
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interrogatories and provides, in relevant part that “[a]n interrogatory may relate to any
matter that may be inquired into under Rule 26(b). An interrogatory is not objectionable
merely because it asks for an opinion or contention that relates to fact or the application
of law to fact . . . .” Fed. R. Civ. P. 33(a)(2). Rule 26(b), in turn, provides that “[p]arties
may obtain discovery regarding any nonprivileged matter that is relevant to any party’s
claim or defense.” Fed. R. Civ. P. 26(b)(1) (emphasis added). Privileged matter includes
work product materials, which are materials containing “the mental impressions,
conclusions, opinions, or legal theories of a party’s attorney or other representative
concerning the litigation.” Fed. R. Civ. P. 26(b)(3)(B); see also Hickman v. Taylor, 329
U.S. 495, 510-12 (1947).
The term “contention interrogatories,” provided for in Rule 33, has not always
been used consistently to refer to a single type of question. The court in In re Convergent
Technologies Securities Litigation, 108 F.R.D. 328 (N.D. Cal. 1985) explained that
the phrase “contention interrogatory” is used imprecisely to refer to many
different kinds of questions. Some people would classify as a contention
interrogatory any question that asks another party to indicate what it
contends. Some people would define contention interrogatories as
embracing only questions that ask another party whether it makes some
specified contention. Interrogatories of this kind typically would begin
with the phrase “Do you contend that. . . .” Another kind of question that
some people put in the category “contention interrogatory” asks an
opposing party to state all the facts on which it bases some specified
contention. Yet another form of this category of interrogatory asks an
opponent to state all the evidence on which it bases some specified
contention. Some contention interrogatories ask the responding party to
take a position, and then to explain or defend that position, with respect to
how the law applies to facts. A variation on this theme involves
interrogatories that ask parties to spell out the legal basis for, or theory
behind, some specified contention.

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Id. at 332 (emphasis omitted). With respect to these various categories of questions
courts have generally held that contention interrogatories are proper even where they
“probe[] a party’s contentions as to how the law applies to the facts,” explaining that
“[s]uch probing is perfectly permissible and does not invade the work product privilege
merely because the party’s counsel must disclose the reasoning applying the law to the
facts.” In re Rail Freight Fuel Surcharge Antitrust Litig., 281 F.R.D. 1, 4 (D.D.C. 2011);
King v. E.F. Hutton & Co., 117 F.R.D. 2, 5 n.3 (D.D.C. 1987) (finding that
interrogatories did not invade work product protection because “in answering contention
interrogatories the party is only giving the factual specifics which the party contends
supports a claim, and this in no way impinges on the attorney’s impressions or analysis as
to how the attorney will endeavor to apply the law to the facts”); cf. In Home Health, Inc.
v. Shalala, Civ. No. 96-249, 1996 WL 557838, at *1 (D. Minn. July 3, 1996) (finding that
requests for admission were permissible which sought “application of law to fact”
because such requests “merely involve[] a request to confirm or deny if the requestor’s
interpretation of a law, regulation etc. concurs and is in agreement with that of the other
party” (internal quotation marks omitted)).
The Court concludes that the Magistrate Judge erred in requiring Defendants to
“specify the statutes or other legal authority supporting their position” and produce
“relevant legal authorities” in response to Gilmore’s interrogatories because requiring a
party to produce relevant legal authorities goes beyond the permissible scope of a
contention interrogatory and constitutes protected work product. Gilmore has not cited,
and the Court has not found, a single case requiring a party to provide citations to all
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relevant legal authority in response to contention interrogatories which ask for the basis
of a party’s claim. Instead, courts have routinely concluded that interrogatories which
seek purely legal information are not permissible. See, e.g., Kendrick v. Sullivan, 125
F.R.D. 1, 4 (D.D.C. 1989) (finding that interrogatories impermissibly sought pure legal
conclusions where, in litigation challenging the constitutionality of the Adolescent
Family Life Act (“AFLA”) the interrogatories asked whether “if any AFLA grants are
found to be unlawful, the entire statute must be stricken as unconstitutional” and asking
whether the “AFLA can lawfully be administered if religious organizations are excluded
as grantees”). For example, in McCrink v. Peoples Benefit Life Insurance Co., Civ.
No. 04-1068, 2004 WL 2743420 (E.D. Pa. Nov. 29, 2004), the court considered an
interrogatory which requested “defendant to state with particularity the reasons that
defendant relies upon ‘in this litigation’ for denying plaintiffs’ claim.” Id. at *4. The
court held that
Defendant shall be required to answer this interrogatory to the extent that it
seeks the factual basis for the denial of plaintiffs’ claim. However,
defendant shall not be required to answer this interrogatory to the extent
that it calls for the defendant’s legal reasoning and theories for denying
plaintiffs’ claim, rather than for the factual basis underlying this reasoning.
Id. (citation omitted); see also Fed. R. Civ. P. 33, advisory committee’s note (“As to
requests for opinions or contentions that call for the application of law to fact, they can be
most useful in narrowing and sharpening the issues, which is a major purpose of
discovery. On the other hand, under the new language interrogatories may not extend to
uses of ‘pure law,’ i.e., legal issues unrelated to the facts of the case.”).

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Here, the Magistrate Judge essentially construed the at-issue interrogatories as
asking for the disclosure of legal authorities relevant to Defendants’ defenses that
Gilmore’s arrest and the subsequent destruction of his sign were lawful. But such an
interrogatory does not fall within any of the categories of permissible contention
interrogatories identified by courts. For example, the interrogatory does not ask whether
Defendants are making a particular contention about the legality of the arrest and sign
destruction; does not ask Defendants to state all of the facts or evidence on which they
base their defenses; does not ask Defendants to take a position and then explain that
position by analyzing how the law applies to the facts; nor does the interrogatory ask for
Defendants to explain the legal theory behind a specific contention. See In re Convergent
Techs. Sec. Litig., 108 F.R.D. at 332 (noting that one category of contention
interrogatories includes “interrogatories that ask parties to spell out the legal basis for, or
theory behind, some specified contention”). Instead, the interrogatories impermissibly
reach into the territory of protected work product by seeking discovery of all the legal
authorities upon which Defendants intend to rely to support their defenses.

Such

interrogatories do not serve the purposes of discovery. Discovery is intended to make
trial “less a game of blind man’s b[l]uff and more a fair contest with the basic issues and
facts disclosed to the fullest practicable extent,” United States v. Proctor & Gamble Co.,
356 U.S. 677, 683 (1958), but by narrowing and clarifying the issues, it is “hardly
intended to enable a learned profession to perform its functions either without wits or on
wits borrowed from the adversary,” Hickman, 329 U.S. at 516 (Jackson, J., concurring).
Thus, to the extent the Magistrate Judge ordered Defendants to respond to the at-issue
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interrogatories with citations to all relevant legal authorities, the Court will sustain
Defendants’ objections and reverse the order of the Magistrate Judge.
Finally, to the extent relevant legal authorities could be produced in response to an
interrogatory, the interrogatories at issue here did not seek such information, and thus the
Court concludes that the Magistrate Judge erred in expanding the scope of Gilmore’s
interrogatories at the motion to compel stage. The interrogatories at issue ask Defendants
to “[s]tate in detail all facts” supporting Defendants’ defenses and to “explain in detail the
reason or reasons” for denial of any of the requests for admission. (Pl.’s Mem. in Supp.
of Mot. to Compel at 2.) Interrogatory 6 plainly does not require the disclosure of legal
authorities as it asks Defendants only to “[s]tate in detail all facts” which support their
defenses.

(Id. (emphasis added).)

Furthermore, Interrogatory 9 asks only for an

explanation of the reasons for Defendants’ denial of the requests for admission, and does
not request citations to legal authorities. Although in his motion to compel Gilmore
sought an order requiring Defendants “to identify with specificity which laws and legal
authority they are relying upon to support their defense that the arresting officers were
justified and had probable cause to arrest plaintiff” (id. at 8), this relief was not warranted
based on the plain language of the interrogatories Gilmore served upon Defendants,
which did not require identification of such information. Accordingly, the Court will
sustain Defendants’ objections and reverse the order of the Magistrate Judge. 2

2

The only relief sought in Gilmore’s motion to compel was “an order requiring
defendants to identify with specificity which laws and legal authority they are relying upon to
support their defenses that the arresting officers were justified and had probable cause to arrest
plaintiff” (Pl.’s Mem. in Supp. of Mot. to Compel at 8), and that was the only issue related to the

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ORDER
Based on the foregoing, and all the files, records, and proceedings herein, the
Court SUSTAINS Defendants’ Objections [Docket No. 58] and REVERSES the Order
of the Magistrate Judge dated May 30, 2014 [Docket No. 57].

According IT IS

HEREBY ORDERED that Plaintiff’s Motion for Discovery [Docket No. 38] is
DENIED.

DATED: September 21, 2014
at Minneapolis, Minnesota.

___________s/John R. Tunheim_________
JOHN R. TUNHEIM
United States District Judge

motion to compel addressed by the Magistrate Judge (see Order at 4-5). Therefore, because the
Court has concluded that the Magistrate Judge erred in requiring responses which cited laws and
legal authority, it will also deny Gilmore’s motion to compel.

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